The 4th Amendment

The 4th Amendment to the United States Constitution was added as part of the Bill of Rights
on December 15, 1791. It deals with protecting people from the
searching of their homes and private property without properly executed
search warrants. The 4th Amendment reads like this:

"The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be
seized."

4th Amendment Rights

The 4th Amendment requires that in order for a government official, such as a police officer, to search a person's home, business, papers, bank accounts, computer
or other personal items, in most cases, he must obtain a search warrant
signed by the proper authority, which usually means by a judge.

In order for a warrant to be issued, someone must
affirm to the judge that he has a reasonable belief that a crime has
been committed and that by searching the premises of a particular
location, he believes he will find evidence that will verify the crime.
The person submitting this information to the judge is usually a police
officer. The police officer does not have to be correct in his
assumption, he just has to have a reasonable belief that searching
someone's private property will yield evidence of the crime.

The judge then reviews the
information and if he also believes the information the officer has
submitted shows probable cause, he will issue the warrant. In order for
the warrant to be good, it must identify the place and the particular
items or persons that are to be seized if they are found. A warrant is not
a general order that can be used to search for anything, anywhere the
officer wants. In order for the warrant to be in compliance with the 4th Amendment, the warrant must be very specific about what is being looked for and where the officer can look for it.

History of the 4th Amendment

Sir Edward Coke

The 4th Amendment
idea that citizens should be protected from unreasonable searches and
seizures goes back far into English history. In 1604, in the famous Semayne's Case, the Judge, Sir Edward Coke, first identified this right. He ruled that, "The
house of every one is to him as his castle and fortress, as well for
his defence against injury and violence as for his repose."

In this case, it was determined that
subjects of the kingdom had the right to be protected from searches and
seizures that were unlawfully conducted, even if they were conducted by
the king's representatives. The case also recognized that lawfully
conducted searches and seizures were acceptable. This case established a
precedent that has remained a part of English law ever since.

The most famous English case dealing with the right to freedom from illegal search and seizure is called Entick vs. Carrington, 1765. In this case, royal representatives had broken into the private home
of John Entick in search of material that was critical of the king and
his policies. In the process, they broke into locked boxes and desks and
confiscated many papers, charts, pamphlets, etc. The officers were
acting on the orders of Lord Halifax.

During the trial, Entick charged that the entire
search and seizure had been unlawfully conducted, and the Court agreed.
The Court said that Lord Halifax had no standing to issue the order to
search the premises, that probable cause that a crime had been committed
had not been
demonstrated and that the warrant allowed a general confiscation of
anything the officers found, not specifying exactly what they were to
look for or could seize. In addition, there were no records kept of what
the officers seized.

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Charles Pratt,
Lord Camden

This ruling essentially declared that the government
was not allowed to do anything that was not specified by law. It
required the search and seizure be carried out according to the law. It
also established that the right to be able to protect one's private
property was an important
right to be safeguarded by the government. In his ruling, Lord Camden, the Chief Justice made this famous statement:

"The great end, for which men
entered into society, was to secure their property. That right is
preserved sacred and incommunicable in all instances, where it has not
been taken away or abridged by some public law for the good of the
whole. The cases where this right of property is set aside by private
law, are various. Distresses, executions, forfeitures, taxes
etc are all of this description; wherein every man by common consent
gives up that right, for the sake of justice and the general good. By
the laws of England, every invasion of private
property, be it ever so minute, is a trespass. No man can set his foot
upon my ground without my license, but he is liable to an action, though
the damage be nothing; which is proved by every declaration in
trespass, where the defendant is called upon to answer for bruising the
grass and even treading upon the soil. If he admits the fact, he is
bound to show by way of justification, that some positive law has
empowered or excused him. The justification is submitted to the judges,
who are to look into the books; and if such a justification can be
maintained by the text of the statute law, or by the principles of
common law. If no excuse can be found or produced, the silence of the
books is an authority against the defendant, and the plaintiff must
have judgment."

In 1886, in a case called Boyd vs. United States, the Supreme Court of the United States referred to Entick vs. Carrington
as a "great judgment," "one of the landmarks of English liberty" and
"one of the permanent monuments of the British Constitution." This
established the Entick decision as a guide to understanding what the Founding Fathers meant concerning search and seizure laws when they wrote the 4th Amendment.

Colonial History of the 4th Amendment

The British government generally looked at the American colonies as a money making
enterprise. Consequently, they passed many revenue collection bills
aimed at generating as much money from the colonists as possible. The
colonists naturally resented this and engaged in
substantial smuggling operations in order to get around the customs taxes imposed by the British government. You can learn more about these and other causes of the American Revolution here.

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King George III

In response to the widespread smuggling, Parliament and the King began to use "writs of assistance,"
legal search warrants that were very broad and general in their scope.
Customs agents could obtain a writ of assistance to search any property
they believed might contain contraband goods. They could enter someone's
property with no notice and without any reason given. Tax collectors
could interrogate anyone about their use of customed goods and require
the cooperation of any citizen. Searches and seizures of private
property based on very general warrants became an epidemic in colonial
America.

In response to this, the
Massachusetts legislature passed search and seizure laws in 1756
outlawing the use of general warrants. This created a great deal of
friction between the Royal Governor and the people of Massachusetts
until the death of King George II in
1760. Writs of assistance by law were good until 6 months after the
death of the king who issued them. This meant that the Royal Governor
had to have new writs of assistance issued by the new king.

James Otis,
a Boston lawyer, had recently been appointed Advocate General of the
Admiralty Court, which meant he was essentially the top lawyer for the
Crown in the colony. In this position, Otis was required to defend the
use of writs of assistance by the government. He strongly objected to
these arbitrary searches and seizures of private property and
consequently resigned his position. Instead, he became the lawyer for a
group of over 50 merchants who sued the government claiming that the
writs of assistance were unjust.

James Otis
represented these merchants for free. His speech condemning British
policies, including writs of assistance and general search warrants, was
so powerful and eloquent, that it was heard of throughout the colonies
and catapulted him to a place of leadership in the swelling tide of
disillusionment toward Great Britain.

Future President, John Adams, who was 25 at the time, was sitting in the courtroom and heard Otis' famous speech that day. Later he said:

"The child independence was then
and there born, every man of an immense crowded audience appeared to me
to go away as I did, ready to take arms against writs of assistance."

He viewed Otis' speech "as the spark in which originated the American Revolution."

Later, in 1776, George Mason'sVirginia Declaration of Rights, which was a document on which Thomas Jefferson relied heavily when he wrote the Declaration of Independence,
included prohibitions against general warrants that did not specify
probable cause or exactly what was to be searched for. The passage of
the Virginia Declaration of Rights dealing with general warrants reads like this:

"That general warrants, whereby
any officer or messenger may be commanded to search suspected places
without evidence of a fact committed, or to seize any person or persons
not named, or whose offense is not particularly described and supported
by evidence, are grievous and oppressive and ought not to be granted."

Once the Constitution
was written, each state held a convention to debate its worth. Many
people opposed the Constitution because they thought it gave the federal
government too much power at the expense of the states and of
individual rights. Those opposing the Constitution were known as
anti-Federalists. They were led by such men as Patrick Henry, George Mason and Elbridge Gerry.

The anti-Federalists were concerned that the federal
government would trample on the rights of individual citizens. They
believed the Constitution did not specify clearly enough which rights of
individuals were protected from government interference. Some of them
called for the addition of a bill of rights to the Constitution, which
would specify exactly which rights of the citizens were protected.

James Madison

Those who were in support of the
Constitution were known as Federalists because they did support a
strong federal government. The Federalists were led by such men as James Madison, Alexander Hamilton, John Adams and George Washington.

In order to convince enough
anti-Federalists to support the Constitution to pass it and have it go
into effect, the Federalists made a promise that if the anti-Federalists
would vote to accept the Constitution, the First Congress would address
their concerns by adding a bill of rights to it. This promise succeeded
in persuading enough anti-Federalists to support the Constitution that
it passed and became law. It also ensured that the Founders concerns
about illegal searches and seizures would eventually become law embodied
in the 4th Amendment.

On June 8, 1789, James Madison
kept the promise of the Federalists by proposing to the First Congress
twenty amendments to be added to the Constitution. You can read James Madison's June 8, 1789 speech here.

4th Amendment in everyday life

The 4th Amendment only applied originally to the federal government, but through the Due Process Clause of the 14th Amendment, the Supreme Court has now applied most parts of the Bill of Rights to state and local governments as well.

The 4th Amendment
only provides protection from illegal search and seizure by government
officials, not by private citizens. So, if an employer unreasonably
searched your possessions at work, the 4th Amendment would not have been violated.

There are certain exceptions to the 4th Amendment right to have a properly executed search warrant issued before a search or seizure of private property can be conducted. The Supreme Court
has ruled that, for example, a police officer may conduct a pat down
search of someone he has observed engaging in suspicious behavior, if he
has reasonable suspicion that some crime is being committed. Also, if a
police officer observes someone committing a crime, or believes that he
has probable cause to suspect someone has committed a crime, he may
arrest the person without a warrant.

There are a number of other exceptions to the 4th Amendment warrant rule:

The Plain View Doctrine
- An officer may seize anything in plain view, that is, as long as he
has probable cause to believe it has been involved in a crime.

The Open Fields Doctrine
- Warrants are not needed to search open fields or outdoor areas, even
on private property. The Court has ruled that it is not reasonable to
expect privacy in an open field. This does not include the area
immediately around a private dwelling, which is known as curtilage.

Exigent circumstances
- This means that if the officer believes there is immediate danger to
his life or others, or to someone's private property, and he believes
there is some emergency where there is no intent to arrest or seize
evidence, the warrant requirement is waived. An example would be that he
believes a suspect is hiding a gun under the couch on which he is
sitting and believes he might try to use it. In this case, the officer
could search for and seize the gun without a warrant.

Motor Vehicle Exception
- The Supreme Court has ruled that vehicles do not have the same
protection as private dwellings. Vehicles may not be stopped randomly.
There must be reasonable suspicion that a crime has been committed to
stop a vehicle. Items that are in plain view can be confiscated and
other areas of the vehicle can be searched if there is reasonable
suspicion. Reasonable suspicion means the officer has some particular
articulable reason that he thinks a crime may have been committed.
Officers may not search the occupants of the vehicle unless there is
reasonable suspicion of a crime having been committed.

Searches incident to a lawful arrest
- If a lawful arrest is made, an officer can search the person and the
area immediately around the person without obtaining a search warrant.

Border search exception
- Searches conducted at US borders or international airports can be
conducted randomly without reasonable suspicion of a crime having been
committed.

Other exceptions
- Student property on public school grounds can be searched without a
warrant if there is reasonable expectation of finding evidence of a
crime. Government employees may have their personal items at work
searched without a warrant for evidence of illegal activity. Prisoners
can have their personal items searched without a warrant. If a person
consents willingly to a search or seizure, a warrant is not necessary.
Finally, most case law has established that employees do not have
reasonable rights to privacy regarding their work related electronic
information, such as emails and documents on their computers at work.

4th Amendment Rights in Court

Supreme Court
of the United States

In general, any evidence that is
obtained in an illegal search and seizure is not admissible in court by
the prosecution in a criminal defendant's trial. This is known as the 4th Amendment Exclusionary Rule because evidence obtained in this manner is excluded from the trial. The Supreme Court established this rule in a case called Weeks vs. United States, 1914. Before that time, any evidence, even if it was gathered in an illegal search and seizure, was admissible in court.

There are some exceptions to the 4th Amendment Exclusionary Rule.
For example, Grand Juries may use illegally obtained evidence to
question witnesses. The method of gathering the evidence can be
challenged later if the defendant is charged. Evidence gathered in good
faith by an officer can be used in court. This means that if an officer
is following the directions of a warrant that is faulty, not realizing
that it is faulty, the evidence may be used.

Evidence obtained through illegal search and seizure can also be used in the following circumstances:

When evidence is obtained illegally outside the United States

Probation or parole revocation hearings

When a private person, not a government agent, illegally seized the evidence

When evidence seized illegally is used to impeach the defendant's testimony